The story: a rolled-back odometer and a contract “without any warranty”
The case that settled the question looked familiar. One business sold another a used vehicle for 30,160 euros. The odometer showed 25,760 km and 600 operating hours. The real figures were around 75,000 km and 3,900 hours. The contract carried the classic formula: sold “unter Ausschluss jeder Gewährleistung” — with all warranties excluded.
The seller felt safe. The buyer was a business, both sides had signed the exclusion, and between businesses more is allowed, after all. The Federal Court of Justice (BGH) saw it differently: the clause was invalid in its entirety, and the seller was liable as if no exclusion had ever been agreed (judgment of 19 September 2007, VIII ZR 141/06).
A business purchase is not a consumer purchase — but the seller still cannot do everything
Let’s be honest about one thing first: buying a car for your business means losing consumer protection. A dealer cannot exclude warranty rights against a consumer at all, and a defect surfacing within a year enjoys the presumption that it already existed at handover. Between businesses the freedom of contract is wider, and a warranty exclusion is in principle permissible.
So much for the theory. In practice sellers regularly overestimate their clauses, because three mechanisms set the limits:
- judicial review of standard terms (AGB) — a blanket exclusion in a form contract fails even in B2B dealings,
- § 444 BGB — no clause ever covers fraudulently concealed defects or a guarantee that was given,
- tort liability — the typical clause does not reach it at all.
A ready-made form is “standard terms” — and that is where the seller’s problem begins
The key question in every such dispute: was the exclusion individually negotiated with you, or imposed as a pre-drafted template? Standard terms (Allgemeine Geschäftsbedingungen, AGB) are contract terms pre-formulated for multiple contracts and presented by one party to the other at the conclusion of the contract (§ 305 BGB). In the car trade that means: a clause printed on a form, generated by dealer software or copied from a template book is almost always a standard term.
The case law sets the bar low. An intention to use the clause in three contracts is already enough — and even a single use of a text that someone else drafted for repeated use, such as an industry form, qualifies. If it was the seller who produced the ready-made, machine-written contract text, a factual presumption works in the buyer’s favour that the document is a template. Details give a “serial” clause away too: the contract consistently speaks of one “buyer” although there were two, or uses generic phrases such as “in contracts with businesses”.
The seller may argue that the clause was genuinely negotiated (ausgehandelt). The requirements are strict: he would have had to put the substance of the exclusion truly up for discussion and give the buyer a real chance to influence its content. Merely reading the clause out, discussing it or signing it in full awareness is not enough — and it is the seller who must prove that real negotiations took place.
A blanket exclusion in standard terms fails — even between businesses
The catalogue of prohibited clauses in § 309 BGB formally applies only to consumer contracts. The BGH has consistently held, however, that these prohibitions serve as a signpost in B2B dealings as well: a clause that would be banned against a consumer will as a rule unreasonably disadvantage a business customer too (§ 307 BGB). A clause excluding “all warranties” — read, as the case law requires, in the way least favourable to the customer — also excludes liability for injury to life, body and health and for gross negligence. And that can never be excluded in standard terms.
„Ein Unternehmer darf ebenso wie ein Verbraucher darauf vertrauen, dass sein Vertragspartner ihn nicht grob fahrlässig oder gar vorsätzlich schädigt.”
“A business, just like a consumer, may trust that its contracting partner will not harm it through gross negligence or even intentionally.”
BGH, judgment of 19 September 2007, VIII ZR 141/06 — our translation
The BGH confirmed this line in 2021 in another case between businesses (judgment of 3 February 2021, XII ZR 29/20). And the consequence of invalidity is radical: the clause falls in its entirety. The court will not trim it down to the permissible minimum — the full statutory warranty regime takes its place: repair, withdrawal from the contract, price reduction, damages.
Two clauses in one deal — another trap for the seller
A frequent scenario: the seller hands over his general terms of business containing a correctly drafted, narrow clause, while the contract form itself carries a second, blanket warranty exclusion. If, as a result, it is unclear which rule is meant to apply, the ambiguity works against the seller. Nor can he fall back on the milder clause once the harsher one has failed — that would amount, by a detour, to the prohibited practice of saving an invalid term.
What no clause can ever exclude
Even a validly agreed, individually negotiated warranty exclusion has limits that cannot be crossed:
Fraudulently concealed defects and guarantees (§ 444 BGB). A seller who knew about a defect — a concealed accident history, a manipulated odometer — and kept quiet cannot hide behind the exclusion. In the rolled-back odometer case we started with, this was precisely the mechanism that finished the seller off.
Tort claims for a “spreading defect” (weiterfressender Mangel). Where a defective component gradually destroys the rest of the vehicle — the classic example: a faulty assembly in the valve train ended up destroying the whole engine (BGH, judgment of 24 March 1992, VI ZR 210/91) — tort liability comes into play alongside the warranty. The typical clause speaks of “warranty” or “Gewährleistung” and does not reach tort claims at all. The BGH requires that an intention to exclude non-contractual liability follow unambiguously from the clause, and any doubts count against the seller.
A side note: the phrase “gekauft wie gesehen” — sold as seen — is narrower than sellers assume. The courts read it as covering only those defects a layperson could spot on inspection. It does not “legalise” hidden technical defects.
Bought a defective car for your business — what to do
In purchases between businesses § 377 HGB applies: you must examine the vehicle without undue delay after delivery and notify the seller of any defects immediately — hidden defects immediately after they surface. Whoever notifies too late may lose all claims, even if the exclusion clause is invalid. So give notice in writing, straight away, describing the defect. Secure the contract, the advertisement and all correspondence — whether the exclusion was a standard term decides the strategy of the whole case. And do not dispose of the car or the replaced parts while the dispute is running.
What this means for you
- Do not take the refusal at face value. “But you signed a warranty exclusion” is often a bluff — a blanket exclusion in a form contract is as a rule invalid between businesses too.
- The form works in your favour. The more the contract looks like a serial template, the weaker the seller’s position. Keep the original document.
- Nothing protects dishonesty. A concealed accident, a rolled-back odometer — the exclusion does not apply, and liability for fraud comes on top.
- A destroyed engine is not only a warranty case. Where a defective part has wrecked other components, tort claims exist independently of the clause.
- Mind § 377 HGB. The strongest argument is lost if the defect is notified too late. Examine the car at once and report defects without delay.
Frequently asked questions
Does “gekauft wie gesehen” exclude liability for hidden defects?
No. Under the case law this phrase covers only defects a layperson could notice on inspection. The seller remains liable for hidden technical defects — and if the phrase is part of a form contract meant to work as a blanket exclusion, it is invalid.
I bought the car for my business from a private seller — do the same rules apply?
A private seller can as a rule validly exclude the warranty, because the strict review of standard terms is aimed primarily at clauses used serially. One limit remains the same for everyone: fraudulently concealed defects can never be excluded (§ 444 BGB).
Who must prove the seller’s fraud — and how?
The burden of proof lies with the buyer. You must show that the seller knew of the defect, or at least considered it possible, and kept silent nonetheless — or made claims about the car “into the blue”, for instance calling it accident-free without ever checking. In practice this is proven with circumstantial evidence: the extent and visibility of previous damage, service records and the vehicle’s history, witnesses, and an expert opinion showing that a professional could not have missed the defect. The stakes are high — proven fraud defeats every warranty exclusion (§ 444 BGB), opens the door to rescinding the contract (§ 123 BGB) and extends the limitation periods.
How much time do I have for claims in a business purchase?
Warranty claims become time-barred as a rule two years after handover of the car, and for used cars contracts often shorten this to one year. Independently of that, § 377 HGB runs: defects must be notified immediately, otherwise the claims can be lost much earlier.
The judgments discussed are publicly available: BGH, judgment of 19 September 2007 (VIII ZR 141/06), BGH, judgment of 3 February 2021 (XII ZR 29/20, BGHZ 228, 353) and BGH, judgment of 24 March 1992 (VI ZR 210/91). Quotation from the reasons in our own translation. Legal position: July 2026.